United States District Court, N.D. Georgia, Atlanta Division
April 5, 2013
UNITED STATES OF AMERICA
OTIS HENRY, Defendant
For Jerome Bushay, also known as Romey, Defendant: L. Burton Finlayson, LEAD ATTORNEY, Office of L. Burton Finlayson, Atlanta, GA.
Otis Henry, also known as Wesley Johnson, Defendant, Pro se, Lovejoy, GA.
For Otis Henry, also known as Wesley Johnson, Defendant: Kendal Demetrius Silas, Federal Defender Program Inc.-Atl, Atlanta, GA.
Christopher Dixon, also known as Yardman, Defendant, Pro se.
Mark Tomlinson, also known as Supa, Defendant, Pro se, Lawrenceville, GA.
For Mark Tomlinson, also known as Supa, Defendant: R. Gary Spencer, LEAD ATTORNEY, Office of R. Gary Spencer, P.C., Atlanta, GA.
Curtis Hernandez, also known as Kurt Hernandez, Defendant, Pro se.
Nigel Edwards, also known as Nigel the Barber, Defendant, Pro se, Union City, GA.
For Nigel Edwards, also known as Nigel the Barber, Defendant: Thomas Colin Wooldridge, LEAD ATTORNEY, Wooldridge & Jezek, LLP, Atlanta, GA.
Christopher Williams, also known as Eric Washington, also known as Bobby, also known as Beagle, also known as Apachee, Defendant, Pro se, Smyrna, GA.
For Christopher Williams, also known as Eric Washington, also known as Bobby, also known as Beagle, also known as Apachee, Defendant: Jay Lester Strongwater, LEAD ATTORNEY, The Law Office of Jay L. Strongwater, Atlanta, GA.
Damien Aarons, also known as Damage, Defendant, Pro se, LEXINGTON, KY.
For Damien Aarons, also known as Damage, Defendant: Arturo Corso, Corso, Kennedy & Campbell, LLP, Gainesville, GA.
Conrad Harvey, also known as Fowley, Defendant, Pro se, Lovejoy, GA.
For Conrad Harvey, also known as Fowley, Defendant: Akil K. Secret, LEAD ATTORNEY, The Secret Firm, P.C., Atlanta, GA; R. Allen Hunt, Law Office of R. Allen Hunt, Atlanta, GA.
For Nugen Motor Sports, Inc., doing business as Nugen MotorSports, Movant: James Ward Howard, The Howard Law Firm, Tucker, GA.
For USA, Plaintiff: Cassandra Juliet Schansman, Dahil Dueno Goss, Office of United States Attorney, Northern District of Georgia, Atlanta, GA; Jeffrey W. Davis, U.S. Attorneys Office - ATL, Atlanta, GA; Libby Skye Davis, Mary F. Kruger, U.S. Attorney's Office-ATL, Atlanta, GA.
Timothy C. Batten, Sr., United States District Judge.
This matter is before the Court on Defendant Otis Henry's objections  to Magistrate Judge Alan J. Baverman's Report and Recommendation (the " R& R" ) , which recommends that Henry's motions to suppress evidence from 1855 8th Street, Chamblee, Georgia [513 & 521] and to suppress identifications [509, 552 & 573] be denied; his motion to suppress statements  be granted in part and denied in part; and his motion to suppress evidence related to the search of a hotel room in Tampa, Florida  be denied in part and held in abeyance in part. Henry filed objections to the R& R.
A district judge has a duty to conduct a " careful and complete" review of a magistrate judge's R& R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982)). This review may take different forms, however, depending on whether there are objections to the R& R. The district judge must " make a de novo determination of those portions of the [R& R] to which objection is made." 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R& R to which no objection is made need only be reviewed for
clear error. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006).
" Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. " This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410.
The district judge also has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Indeed, a contrary rule " would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
After conducting a complete and careful review of the R& R, the district judge may accept, reject or modify the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).
The Court has conducted a careful, de novo review of the report and recommendation and Henry's objections thereto. Having done so, the Court finds that Magistrate Judge Baverman's factual and legal conclusions regarding Henry's motions to suppress evidence from his girlfriend's residence at 1855 8th Street were correct and that Henry's objections have no merit. The Court agrees with Judge Baverman that Henry has not carried his burden of showing that he had a legitimate expectation of privacy in his girlfriend's home. Further, the Court holds that even if Henry could show a legitimate expectation of privacy, Henry has also failed to satisfy his burden of demonstrating that the warrant and/or its execution were defective. Thus, the Court will deny Henry's motions to suppress evidence obtained from the search of the 8th Street residence.
The Court will also adopt the Magistrate Judge's conclusions that the identification testimony of two of Henry's girlfriend's neighbors is admissible. However, the Court does not adopt Judge Baverman's conclusion that the motion to suppress identification testimony should be denied in full. The R& R states, " Henry only complains about, and in any event, the evidence only supports, a conclusion that displaying a single photograph of Henry to the neighbors and CS-1 [a confidential informant] arguably implicates due process because the procedure was overly suggestive." R& R, at 20. But Henry's post-hearing brief argues that " the presentation of single photographs to the two neighbors of 1855 Eighth Street and to the concierge at 943 Peachtree Street was in each instance inherently suggestive." (Emphasis added). The R& R makes clear that the 943 Peachtree Street concierge and CS-1 are two different people. Thus, Henry's
objection did not regard CS-1, but the concierge. As Henry points out in his objections, Judge Baverman made no conclusion as to whether the concierge's identification testimony should be excluded.
The Court therefore considers the concierge's identification. On December 15, 2010, law enforcement officers were executing a warrant at 943 Peachtree Street, Apartment 707. They questioned the concierge about the apartment's owner and asked about various people that the concierge might have seen at the apartment. The concierge responded that there were too many people coming and going from the building for him to know who was going to the apartment. An agent then showed the concierge a photo of Henry and asked if he had seen him. The agent testified at the hearing on Henry's motions that the concierge said he thought he had seen the man in the photograph before but was not sure. Specifically, the agent testified, " I think he said, you know, he had seen him, but. . . [he said] I see too many people kind of every day, you know. Unless I have specific interactions with them, I don't necessarily pay attention."
Courts follow a two-step analysis when determining whether introduction of identification testimony violates due process. " First, [the court] must determine whether the original identification procedure was unduly suggestive." Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1998). If the identification procedure was suggestive, " [the court] must then consider whether, under the totality of the circumstances, the identification was nonetheless reliable." Id.
Henry argues that the identification procedure was unduly suggestive because officers showed the concierge a single photo in the context of a federal investigation. The Court agrees that this procedure was unduly suggestive. See, e.g., Marsden v. Moore, 847 F.2d 1536, 1545 (11th Cir. 1988) (pretrial photographic identification procedure in which defendant was the only male in photographs shown to witness was unduly suggestive); Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir. 1986) (procedure unduly suggestive where witness was shown four photographs, each of the defendant); U.S. v. Cannington, 729 F.2d 702, 711 (11th Cir. 1984) (single photo display suggestive); U.S. v. Perkins, No. 1:10-cr-97-JEC-LTW, 2011 WL 2294163, at *8 (N.D.Ga. Apr. 21, 2011) (single photographs shown to witnesses may have been unduly suggestive).
" Even a single-picture photo display, however, can be admissible if the identification is otherwise reliable." Perkins, 2011 WL 2294163, at *8 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). For an identification to be unconstitutionally unreliable, there must be " a substantial risk of misidentification." Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987). " Factors considered in determining reliability include 'the opportunity to view the witness at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'" Id. (citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).
Once Henry carried his burden of showing that the eyewitness identification was derived through " impermissibly suggestive" means, the burden shifted to the Government to show that the identification was reliable independent of the suggestive procedure. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Here, the Government has failed to meet its burden. According to
the agent's own testimony, the concierge told the agent that he thought he had seen Henry before but was not sure and that he saw too many people coming and going to pay attention. This complete lack of certainty demonstrates that there is a substantial risk of misidentification. The Court will therefore grant Henry's motion to suppress the concierge's identification.
Henry has made no objection to the R& R's determination regarding his motion to suppress statements. Having found no clear error in the R& R's conclusions, the Court will adopt the R& R's determination that Henry's pre-Miranda statement that he had marijuana stored in his hotel room should be suppressed, and that to the extent that Henry challenges his post-Miranda statements, such a challenge should be denied.
Finally, the Court addresses Henry's motion to suppress evidence related to the search of a Tampa hotel room. Henry has moved to suppress evidence obtained as a result of the agents' (1) search of his cell phone when he was arrested, and (2) search of the hotel room. Judge Baverman has ordered further briefing regarding evidence seized from the hotel room and thus that issue will be held in abeyance. As to the cell phone, the Court will adopt Judge Baverman's conclusion that the agent's limited search of Henry's cell phone following his arrest should not be suppressed.
The Eleventh Circuit has not addressed this precise issue. See United States v. Allen, 416 F. App'x 21, 27 (11th Cir. 2011) (" Whether the warrantless search of a cell phone incident to arrest violates a person's Fourth Amendment expectation of privacy is an unanswered question in this Circuit." ). As pointed out in the R& R, five circuit courts of appeal have reached this issue and have concluded that such a search is permissible. R& R, at 28-29 (citing United States v. Rodriguez, 702 F.3d 206, 209-10 (5th Cir. 2012); Silvan W. v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009); United States v. Mendoza, 421 F.3d 663, 668 (8th Cir. 2005); United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009); United States v. Ortiz, 84 F.3d 977, 982-84 (7th Cir. 1996)). Courts within this circuit have reached differing results regarding suppression of searches of cell phones made incident to arrest. Compare United States v. Gomez, 807 F.Supp.2d 1134, 1149 (S.D. Fla. 2011) (holding that " the immediate search at the scene of the cell phone's call log history, limited to phone calls from the preceding 24-48 hours, in our view, was reasonable and appropriate under Supreme Court and Eleventh Circuit precedent" ), and United States v. McCray, No. CR408-231, 2009 WL 29607, at *3 (S.D. Ga. Jan. 3, 2009) (collecting cases), with United States v. Quintana, 594 F.Supp.2d 1291, 1299-1300 (M.D. Fla. 2009) (suppressing search of cell phone's digital photo album incident to arrest for driving while license suspended), and United States v. Wall, No. 8-600016-CR, 2008 WL 5381412, at *3 (S.D. Fla. 2008) (search of text messages without warrant was impermissible because " searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant." ) (citation omitted).
The Eleventh Circuit has stated that this question " is a fairly difficult" one. Allen, 416 F. App'x at 27. The Court agrees with Judge Baverman that in answering this question, the Court should adopt the view of the courts of appeal and other courts that hold that " an arrestee's cell phone properly may be searched without a warrant as incident to his lawful arrest for drug trafficking." R& R, at 28.
Accordingly, the Court ADOPTS AS ITS ORDER the Report and Recommendation  to the following extent: Henry's
motions to suppress evidence from 1855 8th Street, Chamblee, Georgia [513 & 521] are DENIED; Henry's motion to suppress statements  is GRANTED IN PART AND DENIED IN PART; Henry's motion to suppress evidence related to the search of the Tampa hotel room  DENIED IN PART AND HELD IN ABEYANCE IN PART. Henry's motions to suppress identifications [509, 552 & 573] are GRANTED IN PART AND DENIED IN PART as set forth above.
IT IS SO ORDERED